On 13 December 2023, the EFTA Surveillance Authority (ESA) adopted a decision to refer Norway to the EFTA Court for failing to respect childrens’ right of residence in the EEA.
Under EEA law, in particular, the Free Movement Directive (2004/38), in particular Article 7(1), children who are Union citizens/nationals of EU Member States/nationals of EFTA-EEA states have a right of residence in the entire EEA. This right also includes their caregivers (eg. parents, guardians, etc.).
Norway takes the view that children cannot have an independent right of residence under EEA law.
ESA is simultaneously seeking for it to be established by the EFTA Court that it is also failing to include stepchildren of Union citizens/nationals of EU Member States/nationals of EFTA-EEA states within the scope of Article 12(3) of the Directive.
The ESA had previously in September 2020 sent a letter for formal notice to Norway, and followed it up with a reasoned opinion in July 2021. Given Norway has not acted to rectify the national law and/or administrative arrangements, the ESA has thus exhausted its way of trying to enforce EEA law, without recourse to the judicial mechanism.
Thus, the ESA is seeking a declaration of the EFTA Court that,
by failing to recognise that EEA national children can have an independent right of residence under EEA law and be accompanied by their primary carers, Norway is in breach of its obligations under the relevant EEA rules, as interpreted in light of the fundamental right to family life.
This pending case, which has yet to be assigned a case number at the EFTA Court, is another case in the long line of cases on what rights in EEA law apply when cases are decided under either Union citizenship (only in the EU Treaties, but not the EEA Agreement), and/or the Directive (in both EU law and EEA law), and what rights can be derived by analogy.
The EFTA Court previously has acted appropriately and has done a fine job in this area by ensuring substantive homogeneity between EU law and EEA law, despite this structuring differences between the two pillars of the EEA (e.g., Case E-28/15, Jabbi, and Case E-4/19, Campbell, etc.).
More on this cross-pillar movement, and substantive homogeneity and the free movement of persons can be read in Butler in Hyltén-Cavallius and Paju (2022).
The decision of the ESA to refer Norway to the EFTA Court on 13 December 2023 is available here.